Client Alerts

Authorizing Medical — Significant Board Rule Change

July 21, 2017

The State Board of Workers’ Compensation periodically implements amendments to its procedural Rules. Effective July 1, 2017, the Board implemented a major change to Rule 205, which we anticipate will have a profound impact on how quickly employers and insurers must respond to disputes involving authorized medical treatment.

This week, a Circuit Court judge in Jefferson County, Alabama, considering the legality of the $220.00 per week cap on permanent partial disability benefits and the statutory limitation on attorney fees, held the entire Alabama’s Workers’ Compensation Act is unconstitutional under both the Equal Protection Clause of the U.S. Constitution and multiple provisions of the Alabama Constitution. While finding constitutional problems with specific provisions of the Alabama Workers’ Compensation Act, the judge declared in Clower v. CVS Caremark Corp., CV13-904687, the entire Alabama Workers’ Compensation Act unconstitutional due to the non-severability provision in the Act.

The Georgia Court of Appeals in Chandler Telecom, LLC v. Burdette recently examined the definition and scope of the “willful misconduct” defense in regard to an employee’s failure to follow his employer’s rules and a supervisor’s instruction. In finding the accident compensable, the Court of Appeals held Burdette’s actions did not rise to the level of “willful” as this term was defined by the Georgia Supreme Court nearly a century ago. The Court of Appeals found an employee’s behavior had to rise to the level of actions which were “quasi criminal” in nature, rather than a mere violation of instructions, orders, rules, ordinances and statutes, and the doing of hazardous acts where the danger is obvious.

On June 6, 2016, the Supreme Court of Georga issued its Opinion in Roseburg Forest Products Company v. Barnes. The case involves a catastrophic amputation injury and a claimant’s attempt to seek a recommencement of income benefits after two years following the payment of temporary total disability (TTD) benefits. To do so, the claimant argued the two-year statute of limitation under OCGA § 34-9-104 did not apply to his original catastrophic claim and he argued a new fictional injury claim when he was laid off from work approximately 16 years after his initial injury. While this case involved two separate insurer defendants, the successful defense to the fictional injury claim was handled by Swift Currie attorney Michael Rosetti. Click Here to View Full Alert in PDF Format

The 2016 legislative session of the Georgia General Assembly passed House Bill 818, House Bill 402, and House Bill 216, all which revise portions of the Georgia Workers’ Compensation Act. The relevant changes in the law take effect July 1, 2016.